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Alternative Law Journal |
Siobhan McCann is a Sydney lawyer.
Whether you’re a republican or not, last year’s referendum
could have been better executed.
Perhaps those happy with the outcome are not too concerned about how the
vote was run, or will claim that complaints from republicans can hardly be taken
too seriously because, after all, everyone expects a loser to grumble a little.
But for those who believe that the process is significant, and that all voters
should have access to clear information about what they are voting for —
in short, for those who wanted people to vote against the republic because they
really didn’t want it and not simply because they didn’t understand
or were confused, there is reason for concern.
A funny thing happened to me on my way to the polling booth, and it
illustrates this concern. The fact that my story relates to question number two,
the question on the preamble, may deflect criticism that these are no more than
the grumblings of a loser on the republican issue.
There are those who will want to criticise the way in which the preamble
was devised, the lack of broad consultation with the community, and the legal
ambiguity of its effect on the interpretation of the Constitution. These are
important and appropriate points to make. My point is that there was also a
serious problem with the management of the process of voting itself.
I was on holiday when the country voted ‘no’. Nevertheless it
was, for me, a significant event in this country’s history and I had, I
thought, informed myself reasonably well about the issues involved before going
into a polling booth near work a fortnight before the vote was to be held. I had
watched the telly, engaged in lively office discussions about the legal detail,
and clarified the issues which mattered to me.
I wanted a republic, and I wanted a preamble, but not the preamble proposed
by Mr Howard. I had found convincing the arguments put forward by those at the
constitutional convention and elsewhere that devising a preamble which
encapsulated some of the values which we held in common as a community would be
a good addition to the Constitution for the new millenium. Nevertheless, I
didn’t feel that what Howard, Murray and others had written fulfilled the
requirements.
Armed with the very clear knowledge that there was a proposed preamble and
that I did not like it, I came to question number two of the referendum ballot,
and was confused. The question on the ballot paper asked me whether I approved
‘a proposed law to alter the Constitution to insert a preamble’.
The phrasing of the question stopped me in my tracks.
‘a preamble’? What preamble? The question did not ask
whether I approved ‘the proposed preamble’. Was the job of finding a
preamble still to be completed? Were we being asked to agree to the job being
done? Why mess with the indefinite article without good reason?
When I sought to clarify the point I was met with baffled looks and
mutterings and much shuffling of paper. The staff at the polling booth flicked
through the AEC’s Referendum booklet and seemed unable to find anything to
clarify the matter. I voted and left, irritated and not a little concerned about
the misleading nature of the question. I found it particularly misleading in
contrast with the first question, which had been phrased very much more clearly;
indeed its clarity was part of what was dividing the country, particularly the
republicans.
But that’s not all that bothered me. Where was the mention of the
existing preamble? I could find no reference to it or to whether it was to be
replaced. The changes outlined to the Constitution did not include changes to
the existing preamble, despite the fact that it contains several references to
the Queen and the crown and so on. What would happen to it? Implicit in the
wording of the question was the assertion that a preamble did not already exist.
I raised these concerns with the Australian Electoral Commission’s
information hotline and was told that all the literature made it quite clear
that I was voting for a specific preamble and if I hadn’t taken the time
to read the literature there wasn’t very much they could do. Furthermore,
they could do nothing about the wording of the question, constrained as they
were by the rule that referendum questions had to replicate the long title of
the proposed legislation.
On the matter of the existing preamble I was informed that it was not a
preamble at all, though it was true that people called it that. It was,
rather, an introductory paragraph to the Act. Osborne’s Concise Law
Dictionary defines ‘preamble’ as ‘the recitals set out in
the beginning of a statute showing the reason for the Act’. It is not
immediately obvious to me what difference there is between this and an
introductory paragraph to an Act. It may not have contained poetry or set out
our shared community values, but I’m not sure why that should make it any
less a preamble.
The word ‘preamble’ is one which, though it has technical
meanings, is in common use. If the AEC or those responsible for drafting the
questions for the referendum sought to give the word a particular significance
then why hadn’t this been more carefully explained? More to the point, why
was it necessary to give the word this artful meaning in the context of a
referendum? Is this not somewhat inimical to the democratic objectives of this
kind of popular vote?
It is quite true that I had not read the Australian Electoral
Commission’s literature on the referendum. When I did read it, however, I
found the proposed preamble on the last page of the booklet and found a good
deal of ambiguity, not only about the content of the preamble but also about
whether there was one already.
There is no legal reason why the AEC could not have posted a copy of the
proposed preamble on the backs of polling booths. Indeed the option was
considered, and rejected in favour of what was finally provided on the last page
of the official information pamphlet. I find this an interesting decision, and
one which appears in its effect to favour the politically alert and those
accustomed to reading the ‘officialese’ of government department
brochures over those less confident about the process or its
implications.
The AEC official referendum pamphlet’s only clarification of the
issue of the existing preamble is in its reproduction of the official arguments
for ‘yes’ and ‘no’. Predictably enough, the
‘yes’ case indicates that there is currently no preamble in our
Constitution, and the official ‘no’ case indicates the opposite.
Of course I understand that there are unresolved political and legal
arguments about the consequences of the addition of a preamble to the
Constitution, and that the AEC sought to inform voters of these arguments by
setting them out side by side. Nevertheless, the question of whether or not
there is a preamble is surely one of fact, and ought to have been explained
separately and not in the midst of political rhetoric.
If we get another chance at a referendum on these issues we will be faced
with similar legal, constitutional and political arguments, both in relation to
the republic and in relation to the preamble. But what those in charge of the
process will also need to pay attention to is the problem of how to clearly
articulate the questions in such a way that they are understood by a vast
majority of voters.
If the invitation to the public to be legislators is to be genuine, then
attention must be paid to the importance of words, and of clarity of expression,
in the legislative and democratic processes.